The Effect of the United States Supreme Court\u27s Eleventh Amendment Jurisprudence on Clean Water Act Citizen Suits: Muddied Waters

This Article focuses on the impact of the Court\u27s Eleventh Amendment jurisprudence on citizen suits authorized under the Clean Water Act (CWA), because that law\u27s cooperative federalism structure is typical of many other environmental laws, and because citizen suits have historically played a critical role in its implementation. The CWA\u27s citizen suit provision (section 505), which specifically incorporates the Eleventh Amendment, has brought on citizen suits the full force and effect of the Court\u27s current state sovereign immunity jurisprudence. The prevailing wisdom is that the Court\u27s state sovereign immunity jurisprudence will not bar CWA citizen suits brought to enforce federal mandates against states in federal court. For the reasons set out in this Article, I am not sure I agree. The structure of the Article is straightforward. The Article briefly discusses the importance of private enforcement of the CWA, the law\u27s structure, and the specific language of section 505. It then summarizes the arguments favoring centralization of regulatory authority in the federal government and shows how arguments favored by devolutionists-those who argue for decentralization of federal regulatory authority to the states-appear to be prevailing to the detriment of strong environmental enforcement. The Article then turns to the key cases that comprise the Court\u27s current view of the Eleventh Amendment. An examination of this case law reveals the compatibility between the themes the devolutionists propound and those the Court articulates in support of its decisions. The Article applies this decentrist jurisprudence, as interpreted by the lower courts, to the CWA to see to what extent it might constrain citizen suits against states, and concludes that it might well limit them. Finally, the Article shows how various suggested ways around the Eleventh Amendment, such as finding an alternative theory for congressional abrogation or grounds for states to waive their immunity, relying on the federal sovereign to prosecute CWA violations against states, or relying on the state courts to vindicate these rights, are wanting in some respect, and thus are poor substitutes for citizen suits. Since the Court has taken upon itself to reinvent the Eleventh Amendment, only the Court can restore the proper balance between the federal government and the states. One can only hope that it will choose to do this before it succeeds in undermining the effectiveness of some very important federal environmental laws

Reserved Indian Water Rights in Riparian Jurisdictions: Water, Water Everywhere, Perhaps Some Drops for Us

In this Article, the author explores the question of whether nonfederally recognized eastern Indian tribes can claim reserved tribal rights to water under the Winters doctrine. The urgency of resolving this question in the tribes \u27favor is underscored by the mounting problem of water scarcity in the East, where most such tribes live, and the problems these tribes have in claiming water under the prevailing systems for managing water in that part of the country, riparianism and regulated riparianism. Recognizing that, to date, these rights have been claimed almost exclusively by federally recognized western tribes who live on withdrawn federal lands in states that manage water under the prior appropriation system, the author nonetheless puts forth an array of reasons why these factors should not bar eastern tribes from claiming the same rights. After examining the major features of the three systems for allocating surface flow and the Winters doctrine, the author will show that there are no insurmountable obstacles to the assertion of Winters rights in non-prior appropriation jurisdictions. The author then turns to various normative and utilitarian reasons why eastern tribes should be able to claim these rights. The Article concludes by showing why the artifacts of federal recognition and federal reservations should not pose a barrier to eastern tribes\u27 assertion of their Winters rights

How Judicial Hostility Toward Environmental Claims and Intimidation Tactics by Lawyers Have Formed the Perfect Storm Against Environmental Clinics: What\u27s the Big Deal About Students and Chickens Anyway?

Since 1976, when the first environmental clinic was started at the University of Oregon’s law school, clinics have proliferated. Today, approximately one out of five law schools has an environmental clinic. With respect to clinics in general, the Association of American Law Schools Directory of Law Teachers lists “nearly 1400 full-time faculty teaching clinical courses.” Yet far from being an uncontroverted part of the academic landscape, clinics—particularly environmental clinics—have endured political blowback from challenging the environmentally destructive behavior of major economic interests. The effectiveness of environmental clinics is no greater than established environmental organizations—perhaps less effective given the length of time it takes for law students guided by faculty to mount a legal challenge and the complexity and difficulty of the cases these clinics take on. Nonetheless, environmental clinics repeatedly find themselves the target of efforts to shut them down, restricted in the types of cases and/or clients they can take on, and limited by supervisory boards with the power of case approval. Why is this? What is it about law students working for credits and grades that powerful interests find so threatening that they spend their resources on eliminating clinics instead of confronting them in court? Is the attack on clinics part of a broader attack on public access to the courts for righting environmental wrongs? Do these attacks reflect something about the nature of the attacker and her victim? This article seeks to answer those questions, and concludes that clinics, like environmental organizations, function in an environment that is exceptionally hostile to the types of clients they represent and the cases they bring. This means that the claims environmental clinics file, like those filed by the national groups, will be met with a barrage of opposing filings based on a number of jurisdictional and other challenges enabled by the U.S. Supreme Court’s anti-public interest jurisprudence. Unlike the well-funded, publicly visible, and widely supported national organizations, environmental clinics are more vulnerable to less conspicuous attacks brought directly by the economic interests they challenge and their political supporters. Perhaps clinics unwittingly invite these attacks that in turn weaken their ability to function in this already hostile environment. The combination of the two can create a perfect storm for environmental clinics. Even more curious is the role that lawyers play in attacks on clinics and the bullying techniques they use to discourage clinic-initiated litigation. There is something about students that brings the bully out in those who face them across the table that goes beyond the usual reasons given for these attacks—namely, that environmental clinics empower people who are otherwise without power to confront those who disregard their interest, that they are successful, and that they have enormous staying power and endless student enthusiasm. This behavior, although part of the general incivility problem afflicting the legal profession, is something more, and has to do with the nature of today’s lawyers and the context in which they learned how to be lawyers and practice law. Although many articles have been written about attacks on environmental clinics, none has identified this second reason—the milieu in which lawyers are educated and trained—and placed it in the broader context of judicial hostility toward environmental claims brought against established economic interests. This article lays the groundwork for these conclusions by first briefly discussing the origins of clinics and clinical pedagogy in general. Then it describes the various attacks on the clinics, some consequences of those attacks, and how certain responses to those attacks run afoul of basic ethical precepts as well as notions of academic freedom. The third part of the article, after briefly listing some of the conventional reasons for these attacks, focuses on a less conventional one—namely, that they are fueled by the asocial behavior of lawyers who are in the vanguard of many of these attacks. It shows how such behavior is akin to that of a schoolyard bully who, in sensing a weaker opponent, acts out in ways that have been fodder for psychological literature. This part of the article also describes the various barriers the Court has erected that make it difficult for public interest litigants, particularly poorly funded and understaffed environmental clinics, to prosecute legal claims representing individuals who threaten the economic and political status quo. The article concludes that the more conventional explanation for the attacks against clinics are incomplete because they neither explain the persistence of the attacks nor show how the combination of intimidation and hostile judicial doctrine make it extremely difficult for environmental clinics to do their job

Civic Republicanism Provides Theoretical Support for Making Individuals More Environmentally Responsible

The genesis for this essay is the recognition that individual behavior is contributing in a significant way to the remaining environmental problems we have. For a variety of reasons, ranging from the difficulty of trying to identify and then regulate all of these individual sources to the political backlash that might result if such regulation was tried, efforts to control that behavior have either failed or not been tried. The phenomenon of individuals as irresponsible environmental actors seems counter-intuitive given the durability of the environmental protection norm and polls that consistently show that people contribute to environmental causes, are willing to pay more to protect environmental resources, and consider protecting the environment among their highest priorities. This conflict between thought and deed and its serious effect, if not resolved, is the puzzle that has sent me on this quest. This essay is the author\u27s third attempt at unraveling the problem of irresponsible individual environmental behavior and at suggesting possible ways to reform how people behave toward the environment. The first article proposed expanding the abstract environmental protection norm to include individual environmental responsibility as the approach most likely to overcome barriers to behavioral change. The article recommended enlisting environmental groups as the most effective norm entrepreneurs to achieve widespread change in personal environmental conduct. In that piece, she concluded that the best way to change norms and thus change behavior was through education, but additional measures might be necessary. The second article expanded on the earlier discussion of norms and their influence on behavior, and why changing norms, though difficult, is more effective than other means of inciting behavioral change. However, given the difficulty inherent in creating or changing norms, the second article also identified and evaluated other norm and behavior-changing tactics, such as shaming, public education, and market-based incentives, which might supplement norms as a means of changing behavior. The article concluded that no one approach alone is sufficient to secure both norm and behavior change, but a combination of any or all of them when properly tailored to the source and nature of the harm and when accompanied by public education can lead to both norm and behavioral changes. Thus, both articles concluded that public education plays a critical role in any effort to alter public behavior through changing norms. This essay examines how republican theory supports that conclusion and provides the theoretical framework within which norm change can occur. All three pieces start with the premise that the current crisis over global climate change has created the circumstances in which norm change can occur--circumstances that collectively have created what the author calls a second environmental republican moment. This second republican moment, like the first one in the 1970s, might result in widespread public support for a variety of environmentally protective legislative and regulatory initiatives and offers a rare, albeit brief, opportunity in which to educate the public about its contribution to environmental harm. This essay develops the republican aspect of that thought further, demonstrating how the overlapping strands of republican thought and norm development support the creation of a new norm of personal environmental responsibility. The essay also shows how, during republican moments, the public is more amenable to being educated about civic matters, including their responsibilities as environmental citizens. It is particularly during republican moments that people acquire information that may influence their expressed preferences, lending a sense of urgency to the present moment we find ourselves in. This essay begins by discussing the concept of an environmental republican moment, and why the public\u27s response to the crisis of global climate change appears to be such a moment. The essay then identifies the key features of republican theory and shows how those features replicate many of the elements necessary for norm and behavioral change. The essay concludes by showing how republicanism--with its emphasis on public education, civic involvement, and achieving the common good through civic virtue--provides a useful construct for thinking about how to make people behave in more environmentally responsible ways

Issuance of the Keystone XL Permit: Presidential Prerogative or Presidential “Chutzpah”

This article uses President Trump\u27s issuance of the Keystone XL Pipeline permit to illustrate the dangers of an imperial presidency, one in which the exercise of discretionary authority, based on neither the text of Article II of the Constitution nor a statute, will in all likelihood be unchecked by Congress, the courts, or popular opinion. To understand the dimensions of this concern, Part I of this article briefly describes the process and requirements for a presidential permit. Part II identifies key facts surrounding issuance of the Keystone XL Pipeline permit, the chronology of its issuance, and commonly given reasons supporting or opposing the permit. Part II includes a discussion of non-legal arguments favoring permit issuance, such as its projected economic and national security benefits and the promotion of beneficial relations with a border country, as well as those against its issuance, such as its projected environmental harm and the dangerous precedent it may set as a way to avoid environmental accountability for presidential activities that may have a significant adverse effect on the environment. Part III looks more closely at the constitutional arguments justifying the permit\u27s issuance, finding potential support in the President\u27s prerogative powers as well as in his constitutionally assigned role as Commanderin-Chief of the Army and Navy, his duty to oversee foreign relations, and to take care that the laws are faithfully executed. Part IV identifies the extent to which Article II cabins the President\u27s authority to issue the Keystone XL Pipeline permit and how its issuance may violate the separation of powers doctrine. The arguments that the courts, Congress, and the public will check any abuse of power by the President and that this use of presidential power is supported by precedent are set out in Part III and then critiqued in Part IV. The last part of the article, Part V, broadens the perspective on the issuance of the Keystone XL Pipeline permit. More specifically, the Part discusses how its issuance reflects an accretion of presidential power and questions the wisdom of potentially unbalancing the balance of powers between the two branches of government in the current political environment. Much of the Part\u27s discussion centers on then--Professor Elena Kagan\u27s strong support for a dominant president, what she calls a “presidential administration,” and those who disagree with that idea. The article concludes the President may have stepped beyond the limits of his Article II enumerated and discretionary constitutional powers by issuing the Keystone XL Pipeline permit. In treading on Congress\u27 constitutional authority, President Trump\u27s action risks the creation of an uncheck-able imperial presidency, beyond even what Justice Kagan envisioned. This type of presidency may do serious permanent damage to the constitutional structure of our government, outlasting, in the specific situation, President Trump\u27s days in office

How Judicial Hostility Toward Environmental Claims and Intimidation Tactics by Lawyers Have Formed the Perfect Storm Against Environmental Clinics: What\u27s the Big Deal About Students and Chickens Anyway?

Since 1976, when the first environmental clinic was started at the University of Oregon’s law school, clinics have proliferated. Today, approximately one out of five law schools has an environmental clinic. With respect to clinics in general, the Association of American Law Schools Directory of Law Teachers lists “nearly 1400 full-time faculty teaching clinical courses.” Yet far from being an uncontroverted part of the academic landscape, clinics—particularly environmental clinics—have endured political blowback from challenging the environmentally destructive behavior of major economic interests. The effectiveness of environmental clinics is no greater than established environmental organizations—perhaps less effective given the length of time it takes for law students guided by faculty to mount a legal challenge and the complexity and difficulty of the cases these clinics take on. Nonetheless, environmental clinics repeatedly find themselves the target of efforts to shut them down, restricted in the types of cases and/or clients they can take on, and limited by supervisory boards with the power of case approval. Why is this? What is it about law students working for credits and grades that powerful interests find so threatening that they spend their resources on eliminating clinics instead of confronting them in court? Is the attack on clinics part of a broader attack on public access to the courts for righting environmental wrongs? Do these attacks reflect something about the nature of the attacker and her victim? This article seeks to answer those questions, and concludes that clinics, like environmental organizations, function in an environment that is exceptionally hostile to the types of clients they represent and the cases they bring. This means that the claims environmental clinics file, like those filed by the national groups, will be met with a barrage of opposing filings based on a number of jurisdictional and other challenges enabled by the U.S. Supreme Court’s anti-public interest jurisprudence. Unlike the well-funded, publicly visible, and widely supported national organizations, environmental clinics are more vulnerable to less conspicuous attacks brought directly by the economic interests they challenge and their political supporters. Perhaps clinics unwittingly invite these attacks that in turn weaken their ability to function in this already hostile environment. The combination of the two can create a perfect storm for environmental clinics. Even more curious is the role that lawyers play in attacks on clinics and the bullying techniques they use to discourage clinic-initiated litigation. There is something about students that brings the bully out in those who face them across the table that goes beyond the usual reasons given for these attacks—namely, that environmental clinics empower people who are otherwise without power to confront those who disregard their interest, that they are successful, and that they have enormous staying power and endless student enthusiasm. This behavior, although part of the general incivility problem afflicting the legal profession, is something more, and has to do with the nature of today’s lawyers and the context in which they learned how to be lawyers and practice law. Although many articles have been written about attacks on environmental clinics, none has identified this second reason—the milieu in which lawyers are educated and trained—and placed it in the broader context of judicial hostility toward environmental claims brought against established economic interests. This article lays the groundwork for these conclusions by first briefly discussing the origins of clinics and clinical pedagogy in general. Then it describes the various attacks on the clinics, some consequences of those attacks, and how certain responses to those attacks run afoul of basic ethical precepts as well as notions of academic freedom. The third part of the article, after briefly listing some of the conventional reasons for these attacks, focuses on a less conventional one—namely, that they are fueled by the asocial behavior of lawyers who are in the vanguard of many of these attacks. It shows how such behavior is akin to that of a schoolyard bully who, in sensing a weaker opponent, acts out in ways that have been fodder for psychological literature. This part of the article also describes the various barriers the Court has erected that make it difficult for public interest litigants, particularly poorly funded and understaffed environmental clinics, to prosecute legal claims representing individuals who threaten the economic and political status quo. The article concludes that the more conventional explanation for the attacks against clinics are incomplete because they neither explain the persistence of the attacks nor show how the combination of intimidation and hostile judicial doctrine make it extremely difficult for environmental clinics to do their job

Coloring Outside The Lines: A Response to Professor Seamon’s Dismantling Monuments

In Dismantling Monuments, Professor Richard H. Seamon defends President Donald Trump’s recent proclamations modifying the boundaries of two national monuments, Grand Staircase-Escalante and Bears Ears, that Presidents Clinton and Obama each designated at the ends of their Administrations. Professor Seamon is not alone in making these arguments, as I am not alone in saying that Professor Seamon’s arguments, while well-intentioned, are wrong. He exaggerates the persuasive power of congressional silence. He elevates the importance of the statute’s original intent. Professor Seamon and I read the text and legislative history of the Antiquities Act differently—he sees unlimited presidential power, I see limits. But rather than engaging in hand-to-hand combat with Professor Seamon over who is right with respect to the specific arguments we each make, I think it may be more useful, certainly more interesting, to broaden the discussion to include: (1) the importance over time of an Act’s original intent; (2) the correct role of the Take Care Clause in the debate we are having; (3) the use of the interpretive canon of textual ambiguity to resolve our differences; and (4) the impact of his arguments on the separation of powers doctrine

Administering the Clean Water Act: Do Regulators Have Bigger Fish to Fry When it Comes to Addressing the Practice of Chumming on the Chesapeake Bay?

The Chesapeake Bay is one of the country\u27s most productive estuaries. However, for decades the health of the Bay has been declining due in large part to nutrification. Excessive nutrients encourage algal blooms, which lower dissolved oxygen and increase turbidity in the Bay\u27s waters. More than 40% of the Bay\u27s main stern is now dead largely as a result of this problem. The practice of chumming, the discarding of baitfish, usually menhaden, over the sides of fishing boats to attract game fish like striped bass, is contributing to the Bay\u27s nutrification problem because the decomposing chum raises the waters biological oxygen demand which lowers dissolved oxygen and increases water turbidity causing bay grasses to die and setting in motion destructive positive feedback loops. Chum may also be a source of disease in game fish, and the demand for chum is contributing to the decline of menhaden, an important food and filter fish, on the Atlantic Coast. Despite these problems, the practice of chumming is not regulated by either the federal government or the state of Maryland. This article explores whether citizens can compel regulation by either jurisdiction and concludes that such initiatives would likely fail because of the absence of a duty to regulate. The article examines why regulators decline to regulate and finds that the most likely reasons are an over dependence on economic approaches to environmental regulation, which drives regulators to choose the largest targets of opportunity, and a failure to understand how small disturbances in complex systems like estuaries can set off a cascade of potentially catastrophic and irreversible consequences--here, the loss of the Bay\u27s biodiversity. The article concludes by suggesting that the Precautionary Principle offers a much better approach to identifying regulatory targets in estuarine systems where much is scientifically uncertain; and exhorts citizens to spend time educating regulators of these facts rather than in fruitless and time-consuming litigation

Dual Regulation, Collaborative Management or Layered Federalism: Can Cooperative Federalism Models From Other Laws Save Our Public Lands?

Few would assert that the current governance model for managing the nation\u27s public lands, which grants exclusive authority to the federal government, has protected the natural resource values of those lands or provided a framework for the harmonious resolution of conflicts over their use. Dissatisfaction is apparent from recurrent proposals to privatize public lands or to devolve their ownership to the states. The emergence of the wise use and county supremacy movements directly challenges the authority of the federal government to manage its land. While this new state and local assertiveness is not without historical basis nor completely without merit, its proponents have yet to offer a workable solution other than complete ouster of the federal sovereign